The Trump administration on Friday finalized a regulation that defines gender as a person’s biological sex, reversing an Obama-era rule aimed at protecting transgender people against sex discrimination in health care.
The Health and Human Services Department regulation says essentially that “gender identity” is not protected under federal law prohibiting sex discrimination in health care.
The policy shift was long sought by religious and social conservatives. The Obama administration’s regulation defined gender as a person’s internal sense of being male, female, neither or a combination.
Dr. Grazie Pozo Christie, policy adviser for The Catholic Association, praised the move. She said preventing “discrimination on the basis of sex” was intended “to ensure that women are treated on a par with men.”
“Changing the definition of sex to mean ‘gender identity’ and to include unfettered access to abortion would not have protected the vulnerable,” she said. “Instead, it would have made it impossible for doctors to decline to perform ethically problematic procedures (like late-term abortion) and experimental and dangerous ones (like the removal of healthy organs from young patients with gender dysphoria.) Getting the government out of the business of social engineering, and out of the way of sound medical ethics and patient care is a step forward.”
LGBTQ groups say explicit protections are needed for people seeking sex-reassignment treatment, and even for transgender people who need medical care for common conditions such as diabetes or heart problems.
The GLBTQ Legal Advocates & Defenders (GLAD) group said it will test the new rule in an ongoing federal lawsuit.
“The Trump administration’s new interpretation of Section 1557 contradicts the Affordable Care Act. It’s contrary to established case law, dangerous to transgender people, and can’t survive legal challenge,” said Jennifer Levi, GLAD Transgender Rights Project Director. “Unfortunately, the new rule is likely to confuse health care practitioners, insurers, and employers, and invites providers to turn away transgender people when seeking basic medical care. This is yet another callous policy coming from an administration intent on appeasing the far-right and ignoring sound legal and medical policies.”
Roger Severino, head of the Health and Human Services Department unit that enforces civil rights laws, has said transgender people continue to be protected by other statutes that bar discrimination in health care on account of race, color, national origin, age, disability and other factors.
Women’s groups say the new regulations undermine access to abortion, which is a legal medical procedure.
“No one should fear being turned away by a medical provider because of who they are or the personal health decisions they have made,” said Fatima Goss Graves, president of the National Women’s Law Center, raising the threat of a court challenge.
Under the Obama-era federal rule, a hospital could be required to perform gender-transition procedures such as hysterectomies if the facility provided that kind of treatment for other medical conditions. The rule was meant to carry out the anti-discrimination section of the Affordable Care Act, which bars sex discrimination in health care but does not use the term “gender identity.”
Gregory Baylor, senior counsel of the nonprofit Alliance Defending Freedom, said the administration was right to “restore the rule of law by respecting what Congress meant” by the word sex.
“Replacing the objective concept of sex with the subjective and fluid notion of gender identity, as some courts and the prior administration have tried to do, has serious consequences for women’s sports and female-only spaces like school locker rooms, showers, and homeless women’s shelters,” he said. “Confirming the clear meaning of sex as grounded in human biology ensures that women will continue to have equal opportunities in sports, school, and work, and it protects the privacy rights of all Americans.”
For the administration, it’s the latest in a series of steps to revoke newly won protections for LGBTQ people in areas ranging from the military to housing and education.
The proposed new rule would also affect the notices that millions of patients get in multiple languages about their rights to translation services. Such notices often come with insurer “explanation of benefits” forms.
The Trump administration says the notice requirement has become a needless burden on health care providers, requiring billions of paper notices to be mailed annually at an estimated five-year cost of $3.2 billion.
• This article is based on wire-service reports.